Optus Networks Pty Ltd v Rockdale City Council [2005] FCA 200

FEDERAL COURT OF AUSTRALIA

Optus Networks Pty Ltd v Rockdale City Council [2005] FCA 200 TELECOMMUNICATIONS – application for declarations and injunctive relief – condition of development consent that Meriton underground cables of Energy Australia, State Rail Authority (NSW) and Optus - Council exercised power under NSW statute to modify development consent by deleting condition relating to Optus cables – Commonwealth statutory provision providesthat a State law has no effect to the extent to which the law discriminates or would have the effect of discriminating against telecommunication carriers – meaning of "discriminates" – need to examine operational effect or outcome of Council's exercise of the power – relationship between cl 44 and cl 51 of the Telecommunications Act – undergrounding of cable and power lines is reasonably capable of being considered a reasonable condition of development consent CONSTITUTIONAL – s 109 – operational inconsistency between Commonwealth and State laws

WORDS AND PHRASES – "discriminates"

Telecommunications Act 1997 (Cth) Schedule 3 cl 44, cl 51, Environmental Planning and Assessment Act 1979 (NSW) s96(1A) Commonwealth of Australia Constitution Act 1901 (Cth) s 109 Telstra Corporation Ltd v Hurstville City Council (2001) 118 FCR 198 cited Bayside City Council v Telstra Corporation Ltd (2004) 206 ALR 1 discussed Newbury District Council v The Secretary of State for the Environment [1981] AC 578 cited OPTUS NETWORKS PTY LIMITED AND OPTUS VISION PTY LIMITED v ROCKDALE CITY COUNCIL AND MERITON APARTMENTS PTY LIMITED N 845 OF 2003 TAMBERLIN J SYDNEY 9 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 845 OF 2003

BETWEEN: OPTUS NETWORKS PTY LIMITED

(ACN 008 570 330)

FIRST APPLICANT